In Defense of Abscam

In the country at large, Abscam is raising questions about Congress and the relationship of some of its members to organized crime. But in Washington, Congress and some of the press are raising questions about Abscam and the FBI. They seem already to have concluded that the government is as guilty as any target of its investigation.

On the basis of past investigations and disclosures of FBI abuses of individual rights, it is certainly fair to watch the FBI's methods of law-enforcement and to demand strict adherence to constitutional guarantees. It is not fair, however, to hold congressional hearings into the bureau's handling of the cases before pertinent facts are disclosed in an appropriate judical forum, or to quickly condemn the FBI for "entrapment" or for conducting a "corrupt . . . campaign of pretrial character assassination" before investigation of the leaks has occurred.

Let's look for a moment at what is supposed to have happened.

According to the news stories (and this is all any of use has to go on), the FBI did not initially focus on members of Congress, but on an interstate organized crime operation involving the fencing of stolen securities and works of art. This part of the investigation appears to have been unobjectionable. In fact, the FBI has been under some pressure, including pressure from Congress, to focus its attention more directly on organized crime and illegality in the "corporate suite."

But the FBI did not stop there. Criminal suspects bragged about having politicians in their pockets. Knowing that organized crime flourishes only where it has the cooperation and protection of government officials, and that cooperation is developed and maintained through bribes, payoffs and exchanges of favors, the FBI rightly persisted. It is this part of the investigation, or at least its having reached some congressmen, that has drawn the fire.

Perhaps instant condemnation of the FBI would be more understandable if Abscam had been headed by J. Edgar Hoover, holder of "confidential" files on congressmen, or former attorney general John Mitchell, co-author of the famed congressional "enemies list." But that is not the case here. FBI Director William Webster, Attorney General Benjamin Civiletti and Assistant Attorney General Philip B. Heymann have reputations for being honorable and cautious, and they surely knew that a high-visibility operation like Abscam would put their reputations on the line. Moreover, there must have been some degree of courage on their parts in continuing to go whereever the evidence seemed to lead, even to members of the administration's own party.

But the ultimate test of Abscam need not rest only upon their reputations. To preserve the evidence of its own methods, as well as any evidence of corruption, the FBI put its investigation on film and tape (as well as on the usual reams of paper). It is a matter of record. If their investigative techniques are constitutionally sound and corruption occurred, cases will be made. If entrapment occurred or if (as in the case of Sen. Larry Pressler) there was no violation, cases will not be made. Instead, the bureau may have produced, directed and starred in a documentary of its own mistakes. In time -- if we will just give it some -- the FBI's approach will be tested.

One also has to wonder if the instant criticism would be as loud if the targets of the probe were not members of Congress. No less than other citizens, they are entitled to a presumption of innocence and the benefit of the doubt. But other citizens do not have the machinery and opportunity to launch a retaliatory investigation of the investigators. And that is how any but the most carefully circumscribed immediate congressional hearings will be perceived.

By comparison, the last time the FBI pulled a "sting" of this kind -- a mock fencing operation here in Washington -- it was the most celebrated law-enforcement effort since Dillinger was tracked down and shot in Chicago. The Law Enforcement Assistance Administration was praised for funding it. Hollywood bought the movie rights. Yet when the same operation snares a few members of Congress, it is said that the Constitution is in jeopardy. What is the essential difference? An obvious one is that "street dudes" are black, poor and sell stolen TV sets, while congressmen are white, privileged and sell protection (perhaps to the same people trying to fence the TV sets?).

Whether the Bill of Rights has been abused here is a critically important question, but it cannot be answered on the basis of leaks, and leaks amplified by comment on leaks.

It would be too simplistic and conspiratorial to suggest that organized crime has finally learned how to use public opinion to stop an effective Justice Department effort. At the same time, it would be a shame if premature criticism, resulting primarily from learned responses to past events, had the unintended effect of dulling a sound law-enforcement mission.

Asking for some forebearance of criticism here is not the same as saying that no mistakes were made. On the whole, however, Abscam (as well as Brilab and Miporn, the FBI's large pornography sting) indicates that the bureau is practicing what everyone has been preaching at it to do for years: stop spying on domestic political groups, stop making "easy" cases that produce good statistics and start cracking down harder on serious white-collar crime.

Indeed, had the bureau not followed up the leads to public officials, one can imagine the holocaust of criticism that would have erupted. Headlines conjure irresistibly in the mind's eye: "Confidential Memo Shows FBI Refused to Pursue Clear Evidence of Official Corruption" and "Fear of Investigating Democratic Congressmen in Election Year Raises Questions of Administration Cover-Up." And of course, "Why Did the FBI Fail to Follow Clear Links Between Organized Crime and Political Officeholders, Unless the FBI Itself Is . . . ?"

Leaks of the operation are the most damaging aspect of this whole affair. Should it turn out that the government deliberately leaked or countenanced a leak, there is no question that the consequences should be severe. Now that leaks have occurred, however, it is in everybody's interest, including those who are publicly accused, to see the investigation go forward to indictment or exoneration as quietly and quickly as possible.

In helping to achieve that objective, it is being too critical to remind ourselves that a "leaker" cannot exist without a "leakee"? Isn't it a little ironic for one hand of the press to condemn so quickly what the other hand solicits, presses for and publishes? While the press must always be vigorous in disclosing what it knows about public dishonesty, it has some choices on the timing of disclosure, as we learned recently from its wise decision to refrain from prematurely disclosing the leak that Americans were hiding in the Canadian Embassy in Tehran.

In short, all of us, including those of us who feel a special concern about individual liberty, ought to stop firing in all directions at the first sign of old ghosts. If the FBI really has returned to the bad old days, there will be adequate opportunity to deal with it. In the meantime, the bureau ought to get at least as much justice as Judge Roy Bean gave train robbers and rustlers. To hang it without even trying it, particularly in the name of protecting civil liberties, serves no legitimate principles or cause.